Shackled woman plans appeal

When Shawanna Nelson was sent to McPherson women's prison in Newport on May 16, 2003, she was five months pregnant.

“I'm not saying I expected to be treated like a princess or a queen, but I really expected to be treated differently,” she recalls. What she did not expect was to be shackled to the delivery table with an 18-inch leg chain as she gave birth to her son Sept. 20, with nothing but Tylenol for her labor pains.

Nelson sued the Arkansas Department of Correction in federal court the following year, claiming the shackling violated her civil rights. Her case won at the district court level but on July 18, the Eighth Circuit Court of Appeals reversed the lower court's ruling, citing a precedent which upheld the constitutionality of shackling hospitalized inmates in order to prevent escape attempts.

“The policy of placing a restraint on Nelson while in a hospital bed is unequivocally related to a penological goal and is not constitutionally excessive,” the court declared. “Nelson's experience does not rise to the level of unnecessary and wanton infliction of pain.”

Nelson intends to appeal, and has the support of various human rights and medical interest groups. She pointed out that there is no record of a woman ever having escaped while giving birth. “It's so painful and terrifying — there's no way it's possible,” she said.

But while she may have lost in court, the attention Nelson brought to the practice has prompted the prison system to change the way it handles pregnant inmates. Shortly after she brought her case, the Department of Correction replaced metal restraints with more flexible nylon ones, and created a new policy which allows pregnant inmates to be transported to the hospital unshackled.

Her suit, Nelson said, “was about letting people know.” She said the state “doesn't want everyone to know that stuff like that actually happens here — we try to hide it with soft restraint resolutions.”

According to court filings, Nelson was kept shackled until the time of delivery despite requests from medical personnel to unchain her, and re-shackled immediately afterwards. When she arrived at a Newport hospital, she was denied pain medication by Dr. Paul Hergenroeder, who explained in his deposition, “the more pain they have, they more they value the baby.”

Nelson, who weighed little more than 100 pounds at the time of her arrest on fraud and hot check charges, later had surgery to treat hernia-like symptoms resulting from the delivery of her son, who weighed in at over 9 pounds. She alleges that the shackling left her with permanent back pain and damage to her sciatic nerve.

“I literally have nightmares from this experience,” she said.

The population of female inmates in Arkansas has grown by more than 900 percent over the last 30 years, according to the Women's Prison Association, and policy makers have struggled to keep up with these changing demographics.

The policy that required Nelson to be shackled, for example, was a blanket policy that applied to all inmates undergoing medical procedures. Pregnant prisoners were not allowed to travel unshackled without gaining trusty status, but to gain that status, pregnant women had to participate in work details not suitable for their condition.

Dee Ann Newell, who provided prenatal and parenting classes to Arkansas inmates from 1992 to 2006 and now advocates on behalf of incarcerated parents and their children, says female inmates are uncomfortable speaking out when they feel their rights have been violated.

“You don't step up into that role without consequences,” she said. “Most people inside prisons, if they're going home relatively soon, they don't want to make any waves.”

In many ways, Nelson was an ideal advocate for the inmates of McPherson, about 50 of whom give birth each year. She is articulate and energetic, college educated and has strong family support. Her grandparents encouraged her to file a suit, and helped her to find her lawyer, Cathleen Compton.

Compton was moved by Nelson's experience. “I decided to accept the case because I thought what happened to her was unbelievably wrong,” she wrote in an e-mail.

For some, Nelson's criminal history undermines the legitimacy of her claim.

Nelson was arrested in 2003 after she'd used the Social Security number of a Northwest Arkansas woman with a clean credit history to open accounts with more than eight businesses; she bought $50,000 in merchandise and two cars for more than $20,000 each before she was found out. Her victim was alerted to the theft when a creditor called to confirm information for an application she had not filled out. Nelson was arrested in North Little Rock March 15 after North Point Ford employees called her into their offices on the pretense of needing her to fill out additional paperwork. Nelson had previously pled guilty to using another woman's name to open accounts at Montgomery Ward and Sears in 1999.

Linda Foley, a victim of identity fraud and founder of the Identity Theft Resource Center, believes that women like Nelson do not deserve special consideration.

“The fact that an imposter had to give birth in shackles gets very little sympathy from me,” said Foley. “Whatever little jail time the imposter has to go through, it's nothing compared to what the victim has to go through.”

Max Mobley, the former deputy director of the Arkansas Department of Correction and a defendant in the suit, said the reason pregnant women haven't attempted to escape during childbirth is “because the department has always practiced good security and kept people in restraints unless there was a reason to remove the restraints.”

Still, Mobley credits Nelson with the policy switch to soft restraints. “There's like one in a hundred suits that make a difference like this,” he said.

Today, Nelson lives in Little Rock with her son Jordan, now 4, and her 14-year-old daughter. She is married to Jordan's father, and has taken his last name. Nelson is now doing community advocacy in rural areas, a choice influenced, she says, by her experiences in the prison system.

Though Nelson's daughter is aware of her lawsuit, Jordan does not know anything about the circumstances of his birth. Newell says it is common for women who give birth in prison to have difficulties coming to terms with their children's histories.

“To make the beginning so painful, and so distressing, and so ridden with guilt and shame — a lot of women are not going to tell the children,” she said.

Nelson's effort to bring attention to the treatment of Arkansas inmates has cost her. After she appeared in a photograph in an April 9 issue of the Arkansas Democrat-Gazette she was fired from her position at the Central Arkansas Development Council, where she had worked for almost three years. Nelson believes that she was fired because the article brought her criminal record, which she had not disclosed, to the attention of her superiors. Her former supervisor, Larry Codburn, declined to comment on the circumstances of Nelson's dismissal.

Though Nelson has been fighting for a ban on shackles for almost three years, her interview with the Times was her first public interview. Her lawyer recommended that she turn down all previous requests for comment, including one from the New York Times, in the interest of preserving an unbiased jury pool.

Nelson is not allowed to communicate with current or former inmates of McPherson prison, but she hopes that her actions have made it easier for other female prisoners to speak out. “If something is happening down there and they know about the case,” she imagines, “they could say, ‘they'd better not mistreat us, because we know about the girl that was down here a long long time ago.' ”

Nelson, who attributes the recent dismissal of her suit to prejudice and sexism, is determined to keep fighting for what she sees as a civil rights issue.

“People just look at me like, ‘you were in prison, what did you expect?' I just expected to be treated like a human being,” she said.